1. INTRODUCTION

[1] This matter concerns the request for review of Notice of Violation (NOV) #4971-20-0380 pursuant to paragraph 9(2)(c) of the Agriculture and Agri-Food Administrative Monetary Penalties Act (AAAMP Act).

[2] The issue is to determine the admissibility of this request. I must evaluate whether or not the Mr. Mahendran satisfies the admissibility threshold established by the AAAMP Act, the Agriculture and Agri Food Administrative Monetary Penalties Regulations and the Rules of the Review Tribunal (Canada Agricultural Review Tribunal) (Tribunal Rules).

[3] On February 21, 2020, Mr. Mahendran was served with this NOV upon his arrival at the Pearson International Airport in Toronto, for importing 5 kilograms of Anchor milk powder, which was not declared. Thereby, this contravened subsection 16(1) of the Health of Animals Act. This violation is classified as “very serious” and amounts to a penalty of $1,300 (reducible by 50% if paid within 15 days).

[4] For the following reasons, I find Mr. Mahendran’s request for review is inadmissible on the basis that he has paid the lesser amount of the penalty imposed in the prescribed time. Therefore, he is deemed to have committed the violation in accordance with section 9 of the AAAMP Act.

2. BACKGROUND

[5] On March 9, 2020, Mr. Mahendran filed via registered mail a request for review, dated March 3, 2020, of the NOV. The request for review was received by the Canada Agricultural Review Tribunal (Tribunal) on March 12, 2020.

[6] On October 19, 2020, the Tribunal sent a first acknowledgement letter to both parties requesting them to comply with sections 30 and 31 of the Tribunal Rules on or before November 3, 2020.

[7] On October 21, 2020, the Canada Border Services Agency (Agency) complied with rule 30 of the Tribunal Rules by filing with the Tribunal via email a copy of the NOV. The proof of service of the NOV in the email also confirmed that the penalty associated to the NOV had already been paid as of the date of filing.

[8] On November 3, 2020, Mr. Mahendran complied with rule 31 of the Tribunal Rules. He stated that the penalty had been paid within the 15 days since he elected to pay the lesser amount of $650.

3. ISSUE

[9] Does Mr. Mahendran meet the admissibility threshold established in the AAAMP Act and its regulations? The threshold consists of three requirements:

1. filingtherequest forreview intheprescribedtimeandmanner;
2. thenon-payment of thepenaltyassociated tothenoticeofviolation;and
3. providingtherequiredinformationandmotivesoftherequestforreviewinaccordancewith theTribunal Rules.

4. ANALYSIS

[10] According to subsection 32(1) of the Tribunal Rules, a decision pertaining to the admissibility of a request for review must be rendered within 60 days from the day the first acknowledgment of receipt is sent to the parties. In this case, some of the operations of the Tribunal have been disrupted due to the impact of the COVID-19 pandemic. The Tribunal has been committed to being as flexible and reasonable as possible in managing requests for review received during that period.

[11] The legislative scheme encompassed in the AAAMP Act provides a review mechanism whereby a NOV can be reviewed either by the Minister or by the Tribunal. The legislation further provides the Applicant an opportunity to have a Minister’s decision reviewed by the Tribunal if the Applicant first elected for a Ministerial review. In this case, Mr. Mahendran has elected to proceed by way of direct review by the Tribunal.

[12] However, in order to avoid the Tribunal and the respective parties unnecessarily expending resources, for example the filing of pleadings and the holding of a hearing, the AAAMP Act states as follows:

9 (1) Where a notice of violation sets out a penalty and the person named in the notice pays, in the prescribed time and manner, the amount of the penalty or, subject to the regulations, the lesser amount set out in the notice that may be paid in lieu of the penalty,

(a) the person is deemed to have committed the violation in respect of which the amount is paid;

(b) the Minister shall accept that amount as and in complete satisfaction of the penalty; and

(c) the proceedings commenced in respect of the violation under section 7 are ended.

[13] This provision coincides with the second threshold admissibility requirement, which is to determine whether the penalty associated to the NOV has been paid.

[14] In this case, Mr. Mahendran has paid the reduced amount of the violation, which is stated on the NOV as being $650 on February 21, 2020 to the Agency’s satisfaction. The section of the NOV where Mr. Mahendran acknowledges having committed the violation explicitly reads as follows:

I do not wish to dispute this Notice of Violation with penalty and choose to pay the penalty within 15 days of the date of service of this notice. I understand that by agreeing to pay this penalty, I am acknowledging that I have committed the violation noted.

[15] The Tribunal has no jurisdiction to review the facts of the NOV when the penalty or lesser amount has been paid. Mr. Mahendran is deemed to have committed the violation pursuant to subsection 9(1) of the AAAMP Act.

[16] Given my findings regarding the second threshold requirement, it is not necessary to consider the other two requirements.

5. ORDER

[17] For the aforementioned reasons, I ORDER that the request for review is inadmissible.

[18] Finally, I wish to inform Mr. Mahendran that this violation is not a criminal offence. After five years, he is entitled to apply to the Minister of Public Safety and Emergency Preparedness to have the violation removed from the records, in accordance with section 23 of the AAAMP Act.

Dated at Ottawa, Ontario, on this 4^th day of December 2020.

(Original signed)

Luc Bélanger

Chairperson

Canada Agricultural Review Tribunal